Confirmation Bias

A lot of people think Sen. Majority Leader Mitch McConnell made a mistake in saying that any Obama Supreme Court nominee wouldn’t even get a hearing, let alone a vote, but I think he was perhaps very canny. Knowing Obama’s ideology, he might have been deliberately provoking Obama, as Paul suggested over the weekend, to send a deeply ideological—and preferably minority nominee—for political purposes, but which would make McConnell’s job easier. If cooler heads prevail at the White House, they’ll send up a very moderate white guy, serene in the confidence that he’ll turn out to be another John Paul Stevens before his robes are measured. But harder for the GOP to block. Go ahead Obama—make my day! Send us Cass Sunstein! Or Larry Tribe!

Other conservatives think Judiciary Committee hearings could be used as a “teachable moment” about the Constitution and jurisprudence. I like to think this too, but I doubt it can actually be made to work. The public really doesn’t pay close enough attention to take it in, and the media won’t report the arguments adequately anyway. It hasn’t worked so far, despite attempts by Republicans in the past to start a serious argument in hearings. Ed Whelan points to an exchange in the confirmation hearings of Elena Kagan in 2010, where she declined to state whether she agreed with the ideas of the Declaration of Independence, especially the central idea of natural rights antecedent to all government:

SEN. TOM COBURN: I’m not asking about your judicial – I’m asking you, Elena Kagan, do you personally believe there is a fundamental right in this area. Do you agree with Blackstone that the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn’t say that was a Constitutional right. He said that’s a natural right. And what I’m asking you is do you agree with him?

KAGAN: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States.

COBURN: So you wouldn’t embrace what the Declaration of Independence says, that we have certain inalienable and God-given rights that aren’t given in the Constitution, that are ours, ours alone, and that the government doesn’t give those to us.

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN: I understand that. I’m not talking about as a justice, I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN: Senator Coburn, I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws – that you should not want me to act in any way on the basis of such a belief.

Let’s remember what Obama said about the Supreme Court way back in 2001 on a radio interview where he expressed disappointment that the Warren Court of the 1960s wasn’t radical enough because it did not impose redistribution of wealth: “The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. . . It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”

Confirmation hearings may not work as an effective means of public instruction, but every nominee should be expected to discuss this quotation at length. Before getting a “No” vote from the committee.